Legislative Lowdown -- Alito Scores Knockout Over Democrats

Legislative Lowdown -- Alito Scores Knockout Over Democrats

Perhaps the most revealing and underreported exchange during
Judge Samuel Alito's confirmation hearings began when Sen. Dianne
Feinstein (D.-Calif.) tried to pin Alito down on whether Roe v.
Wade is so powerful as to be a permanent fixture in our
constitutional jurisprudence.

Alito noted that the precedent in Roe, while important, "is not an
inexorable command." Feinstein's sophisticated Roe radar went off.
Former Chief Justice William Rehnquist, you see, once used this
exact phrase in arguing for Roe's reversal. Feinstein concluded
that Alito had sent a subtle signal that he would vote to overturn
the constitutional underpinning to abortion.

Feinstein later summarized the political arguments on behalf of
Roe. Roe, she insisted, has withstood 38 challenges over 33 years,
enjoys the support of a majority of Americans, and is now "settled"
law. Or, she asked Alito, is it?

While acknowledging a "general presumption" that precedents will be
jettisoned only when a "special justification" exists for doing so,
Alito reiterated his view that precedents aren't "inexorable
commands." If they were, he explained, we would be stuck with
constitutional abominations such as Plessy v. Ferguson (where the
court first espoused the "separate but equal" doctrine).

"When an issue is one that could realistically come up, the people
who would be making the arguments on both sides of the issue have a
right to a judiciary of people with open minds."

In one sentence, Alito deftly shifted the discussion from a
political one probing his adherence to abortion rights to terrain
where he controlled the moral high ground. The real issue he
continued, is whether judges should carry out their duties with
"open minds" and consider all the arguments in cases properly
brought before the court-or be, well, intolerant and unwilling to
consider alternative perspectives.

"If I am confirmed as a justice on the Supreme Court," Alito
explained, "it would be wrong for me to say to anybody who might be
bringing any case before my court, ... 'I'm not even going to
listen to your argument. I'm not going to discuss the issue with my
colleagues. Go away. I've made up my mind.'" That, he concluded,
"is the antithesis of what courts are supposed to do."

And pressuring judicial nominees to be close-minded on important
issues that could come before the high court, Alito might have
added, is the antithesis of how senators are supposed to carry out
their "advise and consent" responsibilities.

Decision: Alito, by a knockout.

UN-Helpful

One lesson we've learned from the
Index of Economic Freedom, a comprehensive annual survey of 157
countries compiled by experts at the Heritage Foundation and the
Wall Street Journal, is that nations prosper when they enforce
private property and contractual rights, keep taxes low and the
regulatory burden light, and allow goods and services to flow
freely across national borders. Indeed, the higher a country scores
on the Index, the higher its rate of economic growth.

But some insightful analysis by my Heritage colleague Anthony Kim
has uncovered another interesting relationship. Kim juxtaposed the
UN voting records of all the countries from 2000 to 2004 with their
Index scores and found that countries ranked "free" or "mostly
free" were much more likely to support the U.S. position than were
countries ranked "mostly unfree" or "repressed."

The 18 nations classified as "free"-including United Kingdom,
Australia, Estonia, Chile and (surprise!) Sweden-aligned with the
U.S. position almost half of the time. By contrast, economic
misfits such as North Korea, Zimbabwe, Cuba, Iran and Libya opposed
the U.S. position at least 80% of the time.

Kim's analysis reinforces the wisdom of a quixotic effort by
freshman Rep. Louie Gohmert (R.-Tex.). Gohmert offered an amendment
to last year's UN reform bill proposing a ban on all financial
assistance to nations that oppose the U.S. position in the United
Nations more than 50% of the time. He argued that we must "stop the
flow of American tax dollars to countries that claim to be our
allies" but then use that money "to spew anti-American
venom."

The chairman of the House International Relations Committee, Henry
Hyde (R.-Ill.), reluctantly opposed Gohmert, arguing that some
foreign assistance can be justified when it serves our national
security interests. Fair enough. But Gohmert's instinct is correct
and certainly applies to the billions in non-military, economic
development assistance we currently send to overt enemies of the
United States.

The time is long overdue for Congress to demand something in return
for our foreign aid.

Mike Franc, who
has held a number of positions on Capitol Hill, is vice president
of Government Relations at The Heritage Foundation.